In part one of these two videos I talk through some of the technical points of defamation law in Australia. In part two I look at how the law has played out in six cases.
I am not a lawyer. None of this content is a substitute for advice from a qualified legal professional.
I am, however, a successful defamation defendant. I won a defamation case brought by Universal Medicine cult leader, Serge Benhayon. I represented myself for over a year without a solicitor due to lack of funds.
The chilling effect of Australia’s defamation laws
Publishers in Australia can get into serious trouble for telling the truth. It can take years and hundreds of thousands of dollars to clear your name through the courts. In my case, I was sued in two states concurrently by Benhayon and two of his associates. It took a six week trial to vindicate my publications and I ended up bankrupt. Plaintiff, Serge Benhayon, was ordered to pay approximately $1.2m to cover my legal fees, but that did not cover the very significant additional expense to me. I was not compensated for the huge amount of time I spent working on my defences, or for the inconvenience.
There are well resourced people who exploit Australia’s defamation laws and the prohibitive cost and strain of litigation as a way to censor facts. There are also people who are not wealthy but have won very sizeable defamation payouts from media companies and small publishers.
All members of the public using any form of communication disseminated to other people need to be aware of the risks and how to protect themselves legally. I would like to warn everyone not to make damaging allegations about another person unless you can prove they are true.
To prove the truth of what you’re saying, you’ll need documents capable of proving the truth and/or reliable witnesses willing to testify in court.
Choosing your words
Also, bear in mind that in practice some contentious terms (such as ‘cult’ or ‘evil’ or ‘sociopath’) are very difficult to prove or legally justify and are therefore best avoided.
When publishing about controversial groups or people think about the words you use. Can you describe those people using words that do not carry defamatory meanings? Or words that are easier to prove the truth of? For example, you might be able to avoid the word ‘cult’. You might be able to accurately characterise an organisation as a ‘controversial’ or ‘high demand group’ and use descriptors such as ‘extremist’ or ‘problematic ideologies’, or ‘untested therapies’. Rather than calling someone a ‘cult member’, they might better be described as a promoter of a controversial group, or someone who regularly attends or engages in activities or events held by such a group. The terms you use will depend on the material available to you to prove those terms.
Watch the videos and go to the YouTube pages for more info, but if you don’t want to do that, at least make sure that if you are wanting to plead that a controversial statement is your ‘honest opinion’, then you must base that opinion on facts and proper materials; the facts or proper materials must form a rational basis for that opinion; and you need to specify the facts or provide the proper material or links to it within your publications.
Be careful out there!
Do you need a lawyer? Esther recommends Peter O’Brien, Stewart O’Connell and associates at O’Brien Criminal and Civil Solicitors https://obriensolicitors.com.au/
Defamation Act 2005 (uniform throughout Australia)
The Arts Law Centre of Australia has a very good information sheet on defamation law
Blogging & Tweeting Without Getting Sued by Prof. Mark Pearson
3 thoughts on “Videos: Defamation in Australia with Esther Rockett”
Thank you for this
I hope it helps – with the caveat that these were made on a budget of zero dollars. I’m neither a filmmaker or a lawyer. The aim was to explore some of the technicalities that I found helpful to know as a publisher.
I realised it would be helpful to make them after a gave a talk to a small group of people who would like to speak out about cults. And I thought, well, there’s a bunch of stuff you need to know…
There’s been a development in the mailbox defamation case I talked about it in episode 2. The judgment was overturned on appeal. Appeal court found that the defence of qualified privilege was made out, that the plaintiff did not prove malice, and that the award of $120,000 in damages was excessive. The award has been set aside and the plaintiff has been ordered to pay the defendant’s costs and costs of the appeal (which I would estimate are well into a six figure sum). It goes to show that defamation litigation carries a very high risk and the costs can be devastating https://www.caselaw.nsw.gov.au/decision/5dc504afe4b0ab0bf6073bfb